The Malaysian Cocoa Board - A General Guide

Transcription

1 LAWS OF MALAYSIA REPRINT Act 343 MALAYSIAN COCOA BOARD (INCORPORATION) ACT 1988 Incorporating all amendments up to 1 January 2006 PUBLISHED BY THE COMMISSIONER OF LAW REVISION, MALAYSIA UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968 IN COLLABORATION WITH PERCETAKAN NASIONAL MALAYSIA BHD 2006

2 2 Laws of Malaysia ACT 343 MALAYSIAN COCOA BOARD (INCORPORATION) ACT 1988 Date of Royal Assent August 1988 Date of publication in the Gazette... 8 September 1988 PREVIOUS REPRINT First Reprint 2001

3 Malaysian Cocoa Board (Incorporation) 3 LAWS OF MALAYSIA Act 343 MALAYSIAN COCOA BOARD (INCORPORATION) ACT 1988 ARRANGEMENT OF SECTIONS PART I PRELIMINARY Section 1. Short title, application and commencement 2. Interpretation PART II THE BOARD 3. Establishment of Board and its objectives 3A. Common seal 3B. Membership of Board 4. Tenure of office 5. Alternate members 6. Appointment to be gazetted 7. Temporary exercise of functions of Chairman 8. Functions of the Board 9. Powers of the Board 10. Power to establish corporation 10A. Commercialization of research findings 10B. Power to employ agents, etc. 11. Power of Minister to make regulations 12. Appeals to the Minister

4 4 Laws of Malaysia ACT 343 Section 13. Power of Board to make rules and regulations 14. Minister may give direction 14A. Member deemed to be public servant PART IIA DIRECTOR GENERAL AND STAFF OF THE BOARD 15. Appointment of Director General and other staff of the Board 16. Powers and duties of the Director General 17. Public servants 17A. Delegation of Director General s duties 17B. Property in research finding by Director General or staff PART III FINANCE 18. Malaysian Cocoa Board Fund 18A. Malaysian Cocoa Board Staff Welfare Account 19. Power to borrow money 20. Power to invest 21. (Deleted) 22. Cess on cocoa PART IV CESS PART V AUDIT AND ANNUAL REPORT 23. Submission of accounts, audit and annual report PART VA ENFORCEMENT 23A. Authorization of officers 23B. Power of investigation 23C. Search by warrant

5 Malaysian Cocoa Board (Incorporation) 5 Section 23D. Power to stop and search conveyances 23E. List of things seized 23F. Power to enter premises 23G. Temporary return of conveyance, etc. 23H. Sale and disposal of seized cocoa 23I. Seized cocoa, etc., liable to forfeiture 23J. Property in forfeited cocoa, etc. 23K. Forfeiture or release of seized cocoa, etc. 23L. Claim for seized cocoa, etc. 23M. Release of seized cocoa, etc. 23N. Cost of holding seized cocoa, etc. 23O. No costs or damages arising from seizure to be recoverable 23P. Additional powers 23Q. Offence to assault or obstruct authorized officer PART VB GENERAL 23R. Appointment of analysts 23S. Proportional examination or testing of seized cocoa 23T. Obligation of secrecy 23U. False information 23V. Offence by body corporate 23W. General penalty 23X. Abetments and attempts punishable as offences 23Y. Power to compound 23Z. Institution and conduct of prosecution 23AA. Representation in civil proceedings 23BB. Jurisdiction to try offences 23CC. Protection of officers 23DD. Reward 23EE. Protection of informers

6 6 Laws of Malaysia ACT 343 PART VI SUPPLEMENTARY AND TRANSITIONAL PROVISIONS Section 24. (Deleted) 25. Amendment of Act 11 25A. Further amendment of Act Amendment of Act A. Transfer of property 26B. Existing contracts 26c. Continuance of officers and servants 27. Validation of acts done in anticipation of Act 28. Power of Minister to give exemption FIRST SCHEDULE SECOND SCHEDULE

7 Malaysian Cocoa Board (Incorporation) 7 LAWS OF MALAYSIA Act 343 MALAYSIAN COCOA BOARD (INCORPORATION) ACT 1988 An Act to establish the Malaysian Cocoa Board and to provide for matters connected therewith. [1 February 1989, P.U.(B) 59/1989, except for ss. 25 & 26] BE IT ENACTED by the Seri Paduka Baginda Yang di-pertuan Agong with the advice and consent of the Dewan Negara and Dewan Rakyat in Parliament assembled, and by the authority of the same, as follows: PART I PRELIMINARY Short title, application and commencement 1. (1) This Act may be cited as the Malaysian Cocoa Board (Incorporation) Act (2) This Act shall apply throughout Malaysia and shall come into force on such date as the Minister may by notification in the Gazette appoint, and the Minister may appoint different dates for the coming into force of this Act for different States in Malaysia or for different provisions of this Act. Interpretation 2. In this Act, unless the context otherwise requires analyst means an analyst appointed under section 23R; appointed day means the day on which section 25A comes into operation;

8 8 Laws of Malaysia ACT 343 approved programmes means programmes approved by the Board; authorized officer means (a) an officer of the Board authorized under section 23A; (b) a police officer not below the rank of Inspector; or (c) an officer of customs; Board means the Malaysian Cocoa Board established under section 3; Chairman means the Chairman of the Board appointed under section 3B; cocoa means the plant of the genus Theobroma or any related genus or species or any hybrids or clones of the genus or species, plants resulting from the crossing of these species, hybrids or clones with any other species, hybrids or clones of plants, and genetically engineered versions of these species, hybrids or clones, and includes cocoa beans and cocoa products; cocoa bean means the seed of Theobroma cacao L. whether or not passed through a process of fermentation or drying; cocoa industry means any industry involved in the planting of cocoa or the production of cocoa products or both and includes services related to such planting or production; cocoa planting materials means cocoa seeds, cocoa seedlings, budded cocoa seedlings, any material from any part of the cocoa plant used in vegetative propagation and plants from cocoa tissues; cocoa products means any products manufactured from the cocoa bean and includes cocoa liquor, cocoa butter, cocoa cake, cocoa powder and chocolate; conveyance means any mode of transport, whether by air, sea or land; Director General means the Director General of the Board appointed under section 15;

9 Malaysian Cocoa Board (Incorporation) 9 Fund means the Malaysian Cocoa Board Fund established under section 18; MARDI means the Malaysian Agricultural Research and Development Institute established under the Malaysian Agricultural Research and Development Institute Act 1969 [Act 11]; member means a member of the Board, and includes an alternate member; Minister means the Minister responsible for the cocoa industry; research finding means any results from research and development activities and includes inventions and improvements in any process, apparatus, machine or technique; sea includes inland waters; staff means the officers and servants of the Board and where the context so applies, any expert employed by the Board on a temporary basis; this Act includes any regulations made under this Act. PART II THE BOARD Establishment of Board and its objectives 3. (1) There is established a body corporate by the name of Malaysian Cocoa Board. (2) The Board shall have perpetual succession. (3) The Board may sue and be sued in its corporate name. (4) Subject to and for the purposes of this Act, and on such terms as it deems fit, the Board may (a) enter into contracts; and

10 10 Laws of Malaysia ACT 343 (b) in respect of movable and immovable property and interest in movable and immovable property, of every description (i) acquire, purchase and take such property and interest; and (ii) hold, enjoy, convey, assign, surrender, yield up, charge, mortgage, demise, reassign, transfer, or otherwise dispose of or deal with, such property and interest vested in the Board. (5) The objectives of the Board are (a) to promote and develop the cocoa industry of Malaysia; and (b) to develop national objectives, policies and priorities for the orderly development and administration of the cocoa industry of Malaysia. (6) The First Schedule shall apply to the Board. Common seal 3A. (1) The Board shall have a common seal that shall bear a device approved by the Board. (2) The common seal may, from time to time, be broken, changed, altered and made anew as the Board deems fit. (3) Until a seal is provided by the Board, a stamp bearing the words Malaysian Cocoa Board may be used and shall be deemed to be its common seal. (4) The common seal shall be kept in the custody of the Chairman or a member of the Board. (5) The common seal shall be affixed in the presence of the Chairman and one other member of the Board and the Chairman and such member shall sign every deed, document or other instrument to which the common seal is affixed. (6) All deeds, documents and other instruments purporting to be sealed with the common seal and authenticated as specified in subsection (5) shall, until the contrary is proven, be deemed to have been validly executed.

11 Malaysian Cocoa Board (Incorporation) 11 (7) Any deed, document or other instrument that, if executed by a person who is not a body corporate, is not required to be under seal, may in like manner be executed by the Chairman or a member of the Board on behalf of the Board. (8) The common seal of the Board shall be officially and judicially noticed. Membership of Board 3B. The Board shall consist of the following members who shall be appointed by the Minister: (a) a Chairman; (b) a representative of the Ministry charged with the responsibility for the cocoa industry, to be nominated by the Secretary General of the Ministry; (c) a representative of the Treasury, to be nominated by the Secretary General of the Ministry of Finance; (d) a representative of the Ministry charged with the responsibility for agriculture, to be nominated by the Secretary General of the Ministry; (e) a representative of the Ministry charged with the responsibility for international trade and industry, to be nominated by the Secretary General of the Ministry; (f) five representatives of the cocoa industry; (g) not more than six persons to represent the other interests of the cocoa industry or the interests of the Federal Government or the interests of the State Governments; and (h) the Director General. Tenure of office 4. The members of the Board shall hold office for such period as may be specified in their letters of appointment and shall be eligible for reappointment.

12 12 Laws of Malaysia ACT 343 Alternate members 5. (1) The Minister may in respect of each member of the Board appointed under paragraphs 3B (b), (c), (d), (e), (f) and (g) appoint one person to be an alternate member to attend in place of the member at the meetings of the Board if that member is for any reason unable to attend. (1A) Alternate members to be appointed (a) in respect of members appointed under paragraphs 3B(b), (c), (d) and (e), shall be alternate members nominated by the Secretary General of the respective Ministries specified in those paragraphs; and (b) in respect of members appointed under paragraphs 3B(f) and (g), shall be alternate members nominated by the respective appointed member. (2) When attending meetings of the Board, an alternate member shall for all purposes be deemed to be a member of the Board. (3) An alternate member shall, unless he sooner resigns or his appointment is sooner revoked, cease to be an alternate member if the member in respect of whom he is an alternate ceases to be a member of the Board. Appointment to be gazetted 6. The appointment of every member and alternate member of the Board shall be published in the Gazette. Temporary exercise of functions of Chairman 7. (1) The Minister may appoint any member of the Board other than the Director General to exercise the functions of the Chairman during any period the Chairman is for any reason unable to exercise his functions or during any period of any vacancy in the office of Chairman; and such member shall, during the period in which he is exercising the functions of Chairman under this subsection, be deemed to be the Chairman.

13 Malaysian Cocoa Board (Incorporation) 13 (2) Until an appointment under subsection (1) is made or in default of such appointment or in the absence of the Chairman from any meeting of the Board, the member appointed under paragraph 3B(b) or his alternate, as the case may be, shall exercise the functions of and be deemed to be the Chairman of the Board. (3) If at any meeting of the Board neither the Chairman nor the person exercising the functions of the Chairman under subsection (2) is present, the members present shall elect one of their number to preside at the meeting. Functions of the Board 8. The Board shall have the following functions (a) to conduct and promote research into the production, processing, storage, transportation, marketing, consumption and uses of cocoa and cocoa products; (b) to secure, where the public interest or the interest of the cocoa industry so requires, the development and exploitation of any research finding which appears to the Board not to have been developed and exploited or sufficiently developed or exploited; (c) to acquire, hold, dispose of or grant rights in connection with the research findings vested in the Board or, where the public interest or the interest of the cocoa industry so requires, in connection with the findings of any research undertaken by any person or organization; (d) to control and coordinate the activities and policies of all research and development organizations financed wholly or mainly from the Fund; (e) to ensure that the Board is kept fully informed on the relevant activities and policies of all research and development organizations financed partly by the Fund; (f) to collect, collate and disseminate information relating to cocoa and cocoa products and other substitutes for cocoa products and to promote the use of cocoa and cocoa products in competition with other materials or complementary thereto;

14 14 Laws of Malaysia ACT 343 (g) to coordinate activities within Malaysia relating to research, development, publicity and other matters affecting the cocoa industry as well as to liaise with bodies outside Malaysia concerned with these matters; (h) to provide technical, advisory and consultancy services to the cocoa industry; (i) to coordinate activities towards the efficient marketing of cocoa beans and cocoa products from Malaysia; (j) to regulate and improve the manner of storing and shipping of cocoa and cocoa products; (k) to promote measures towards attaining a high quality for cocoa and cocoa products and including assisting in the laying of standards and the establishment of an efficient grading system; (l) to regulate the processing, grading, packing, import and export of cocoa including the certification thereof; (m) to regulate and coordinate the proper conduct in the production, processing, storage, transportation and marketing of cocoa and cocoa products; (n) to consider, promote and take measures to prevent the occurrence and spread of diseases affecting cocoa; (na) to plan and implement training programmes and human resource development in line with the needs of the cocoa industry; (nb) to conduct research and development on oils and fats other than cocoa butter if such research and development are for the enhancement of the cocoa industry; (nc) to conduct research and development in any other area if the research and development are intended to benefit the cocoa industry; (nd) to conduct research and development on inter-cropping and to promote inter-cropping in cocoa plantations; and (o) generally to do everything for the betterment and proper conduct of the cocoa industry and to exercise such other functions as the Minister may, from time to time, direct.

15 Powers of the Board Malaysian Cocoa Board (Incorporation) The Board shall have the power to do all things reasonably necessary for, or expedient or incidental to, the exercise of its functions, in particular without prejudice to the generality of the following: (a) to establish and operate such institutions and establishments in such places as the Board may consider appropriate in order to discharge its functions under this Act; (b) to enter into such negotiations and arrangements as the Board considers necessary for the promotion of the general interests of the cocoa industry; (c) to receive in consideration of services rendered by it, such commission or payments as may be agreed upon; (d) to impose fees or other charges it deems fit for giving effect to any of its functions; (e) to set up committees, which may consist of or include persons who are not members of the Board in order to advise or assist the Board on such matters concerning its powers and functions as it considers fit; and the Board may delegate, subject to such conditions and restrictions as it may impose, such of its powers and functions (except the power to make regulations and to borrow money) as it considers fit, to any such committees and any act done or decision made by the committees pursuant to such delegation shall be deemed to be the act or decision of the Board. Power to establish corporation 10. (1) The Board may, with the approval of the Minister after consultation with the Minister of Finance, by order published in the Gazette, establish a corporation, by such name as the Board deems fit, to carry out and have the charge, conduct and management of any project, scheme or enterprise that has been planned or undertaken by the Board in the performance of its functions, the exercise of its powers or the discharge of its duties.

16 16 Laws of Malaysia ACT 343 (2) Every order made under subsection (1) shall make provisions in respect of (a) the constitution of the corporation; (b) the financing of the corporation; (c) the repayment of loans made to the corporation; and (d) the accounts to be kept by the corporation and the audit of the accounts. (3) The provisions of the Second Schedule shall apply to the corporation established by the Board under subsection (1). (4) The Minister may make such rules or regulations prescribing any activity or interest or prescribing the terms or conditions of any activity or interest of any member, officer or servant of the Board in relation to the corporation and any omission or neglect to comply with and any act done or attempted to be done contrary to the provisions of such rules or regulations is an offence against this Act and the offender shall be liable on conviction to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both. Commercialization of research findings 10A. The Board may make available any research finding vested in the Board to any person or body subject to such conditions and to the payment of such fees, royalties or other consideration, if any, as the Board may, with the approval of the Minister, determine for the purpose of its commercialization. Power to employ agents, etc. 10B. The Board may employ and pay agents and technical advisers, including advocates and solicitors, bankers, consultants, stockbrokers, surveyors, valuers and other persons, to transact any business or to do any act required to be transacted or done in the performance of its functions, the exercise of its powers or the discharge of its duties or for the better carrying into effect of the purposes of this Act.

17 Malaysian Cocoa Board (Incorporation) 17 Power of Minister to make regulations 11. The Minister may after consultation with the Board, make regulations for the proper and effective carrying out of the purposes and provisions of this Act, and in particular and without prejudice to the generality of the foregoing, such regulations may (a) require the registration and licensing of persons in respect of any or all activities that fall within the scope of the functions of the Board; (b) provide for matters relating to registration and licensing including the manner of applying for registration and licences, the fees payable for licences, the imposition or variation of conditions and restrictions of licences, and the revocation or suspension of such licences; (c) provide for matters relating to appeals; (d) regulate any or all activities that fall within the scope of the functions of the Board in any manner apart from or in addition to registration and licensing; (e) provide for the practices to be observed or avoided in the cocoa industry; (f) provide for the registration of contracts of sale including the details of such contracts, relating to the export of cocoa and cocoa products; (g) for the purposes of ensuring that the quality of cocoa to be exported is of such standard as may be prescribed and for the prevention of fraud in connection herewith, provide for the control and supervision of such standards including the prescribing of marks to be stamped or otherwise inscribed on cocoa packed for export; (h) prescribe the fees to be charged in respect of any research, investigation, test, advice or other services that the Board is requested to carry out, render or perform under these regulations; (i) prescribe penalties for the contravention of the provisions of any regulations made under this section with imprisonment not exceeding two years or a fine not exceeding *fifty thousand ringgit or of both such imprisonment and fine; *NOTE Previously ten thousand ringgit see the Malaysian Cocoa Board (Incorporation) (Amendment) Act 2001 [Act A1103].

18 18 Laws of Malaysia ACT 343 (j) prescribe the standards of processing and methods of fermenting, drying, grading or packaging cocoa and cocoa products; (k) prescribe the procedure for the import and export of cocoa beans and cocoa products; (l) prescribe the offences that may be compounded; (m) prescribe the records and documents to be kept and the returns to be submitted; (n) provide for such other matters as are contemplated by, or necessary for giving full effect to, this Act and for its due administration. Appeals to the Minister 12. (1) Any person aggrieved by the refusal of the Board to issue or renew, or by revocation or suspension by the Board of a licence required under this Act or any rules or regulations made thereunder or by imposition or variation of conditions on such licence, may within thirty days of the decision being made known to him in writing appeal to the Minister, whose decision shall be final and shall not be questioned in any court. (2) In giving his decision on an appeal under subsection (1), the Minister may confirm, reverse or vary the decision of the Board. Power of Board to make rules and regulations 13. The Board may, with the approval of the Minister make such rules and regulations as it considers necessary for the effective discharge of its functions under section 8, and in particular, but without prejudice to the generality of the power conferred by this section, such rules and regulations may (a) prescribe the procedure for the administration of the Fund established under Part III of this Act; (b) (Deleted by Act A1103); (c) prescribe the scheme as well as the terms and conditions of loans to be made to the staff under paragraph 18(3)(c); (d) prescribe matters relating to the establishment of a corporation under section 10.

19 Malaysian Cocoa Board (Incorporation) 19 Minister may give direction 14. The Board shall be responsible to the Minister and the Minister may, after consultation with the Board, wherever in his discretion he deems it necessary to do so, give to the Board directions which to him appear appropriate and expedient relating to this Act, and the Board shall comply with such directions. Member deemed to be public servant 14A. In the exercise of their official duties and functions, the members of the Board shall be deemed to be public servants within the meaning of the Penal Code [Act 574]. PART IIA DIRECTOR GENERAL AND STAFF OF THE BOARD Appointment of Director General and other staff of the Board 15. (1) There shall be appointed by the Minister, a Director General of the Board or a person by such other designation as the Minister may consider appropriate on such terms and conditions and for such period as he shall determine. (2) The Board may appoint such number of other staff of the Board including Cocoa Inspectors as it considers necessary and expedient. (3) The appointment of the Director General shall be published in the Gazette. (4) The Board shall not establish or modify any post or scheme of service for officers and servants of the Board, including the terms and conditions of service and the salaries, any pensions scheme, and any scheme relating to allowances and other remuneration, without the approval of the Treasury and the Public Services Department.

20 20 Laws of Malaysia ACT 343 Powers and duties of the Director General 16. (1) The Director General shall be the chief executive officer of the Board and shall, apart from having such powers and duties specified in subsection (2) or as the Board thinks fit to confer or impose on him, have all the powers and duties necessary for carrying out the administration of the Board. (2) The Director General shall (a) submit for the approval of the Board (i) annual programmes of the activities of the Board; (ii) the estimates of revenue and expenditure necessary to carry out the activities of the Board; (b) ensure that the approved programmes are duly implemented and that the expenditure for carrying out the approved programmes is in accordance with the annual budget approved by the Board; (c) keep the Board fully informed of the progress of its activities. (3) Where the Director General is temporarily unable to exercise his functions on grounds of sickness, absence or any other cause, the Board may appoint a member of the staff to exercise the powers and duties of the Director General. Public servants 17. In the exercise of their official duties and functions, the Director General and staff of the Board shall be deemed to be public servants within the meaning of the Penal Code. Delegation of Director General s duties 17A. (1) The Director General may, in writing, delegate any of the functions, powers or duties assigned to him under this Act to any officer of the Board, subject to such conditions as he thinks fit. (2) A delegation under this section shall not preclude the Director General himself from performing or exercising at any time any of the delegated functions, powers or duties.

21 Malaysian Cocoa Board (Incorporation) 21 Property in research finding by Director General or staff 17B. The property in every research finding by the Director General, any member of the staff or any expert employed by the Board, in the course of his official duties or during the period when the officer or person concerned is under the employment or in the service of the Board, shall vest in the Board but the Board may reward the officer or person concerned for the research finding in such manner as it deems fit. PART III FINANCE Malaysian Cocoa Board Fund 18. (1) There shall be established and maintained a fund to be known as the Malaysian Cocoa Board Fund which shall be administered by the Board. (2) The following shall be paid into the Fund (a) any grant made to the Board by the Federal or any State Government; (b) all moneys collected under section 22; (c) all moneys collected under any rules and regulations made under this Act, other than fines; (d) all moneys borrowed by the Board under section 19; (e) all moneys earned or arising from any investment under section 20 or from any properties, mortgages, charges or debentures; (f) moneys received from other sources including commission and fees for advice or services rendered pursuant to paragraphs 9(c) and (d), or fees, royalties or other consideration payable under section 10A; (g) moneys collected or paid under section 23Y; and (h) donations and contributions received from within or outside Malaysia, including moneys received from any government or organization outside Malaysia.

22 22 Laws of Malaysia ACT 343 (3) The Fund may be applied for (a) defraying the expenses incurred by the Board in administering the Fund; (b) defraying any expenditure lawfully incurred by the Board, including (i) the remuneration of the Director General and staff, including the granting of loans, superannuation allowances, pensions or gratuities and, if relevant, the contributions to the Employees Provident Fund in respect of the Director General and staff; (ii) insurance coverage for the Director General and staff; (iii) contributions to the Malaysian Cocoa Board Staff Welfare Account established under section 18A; and (iv) legal fees and costs and other fees and costs; (c) providing housing loans or loans to purchase conveyances for the Director General and staff, on such terms and conditions as may be prescribed; (d) making contributions by way of subscription or donations to any recognized organization, whether local or international, which promotes research and development on cocoa and the marketing of cocoa and cocoa products; (e) repaying any sum borrowed by the Board under section 19; (ea) paying any reward under section 23DD; and (f) defraying any other expenses which the Board considers incidental to its functions. Malaysian Cocoa Board Staff Welfare Account 18A. (1) The Board may, with the approval of the Minister, out of the funds of the Board, create and maintain a trust account to be called the Malaysian Cocoa Board Staff Welfare Account for the benefit of the Director General and staff of the Board.

23 Malaysian Cocoa Board (Incorporation) 23 (2) The Malaysian Cocoa Board Staff Welfare Account shall be utilized for purposes that are conducive to the welfare of the Director General and staff of the Board as may be specified in trust directions to be issued by the Board with the approval of the Minister and such directions may provide for the manner and the procedure for the making of grants, loans or other payments from the Malaysian Cocoa Board Staff Welfare Account. Power to borrow money 19. The Board may, with the approval of the Minister and the concurrence of the Minister of Finance, borrow moneys for the purposes of exercising its functions. Power to invest 20. The Board may, from time to time, with the approval of the Minister after consultation with the Minister of Finance, invest the Fund or any part thereof, not being immediately required for meeting its obligations or exercising its functions, in any investment or securities for the time being authorized for the investment of trust funds under any written law. 21. (Deleted by Act 478). PART IV CESS Cess on cocoa 22. (1) The Minister may, after consultation with the Minister of Finance, make orders for the imposition, variation or cancellation of cess on cocoa; and the orders may specify the nature, the amount and rate and the manner of collection of the cess. (1A) An order made under this section may prescribe different amounts, rates and manner of collection for different types or grades of cocoa.

24 24 Laws of Malaysia ACT 343 (2) Except as may be otherwise provided in any such order, such cess shall be deemed for the purposes of collecting and enforcing the collection, to be a customs duty imposed under the Customs Act 1967 [Act 235]. (3) Every such order shall be published in the Gazette and shall be laid on the table of each House of Parliament as soon as practicable after the publication of such order in the Gazette. (4) A person who fails or refuses to pay any cess imposed under this section commits an offence and shall on conviction be liable to a fine not exceeding ten times the amount of cess due or to imprisonment for a term not exceeding two years or to both. (5) The amount of any cess imposed under this section shall be a debt due to the Board from the person on whom the cess is imposed and may be sued for and recovered in any court at the suit of the Board. (6) The institution of proceedings under this section shall not relieve any person from liability for the payment of any cess for which he is or may be liable or from liability to make any return that he is required by this Act to make. (7) Without prejudice to subsection (5), the court before which a person is convicted for an offence under subsection (4) may order the person to pay to the Board the total amount of cess certified by the finance officer of the Board to be due from the person at the date of the conviction. (8) Cess payable under subsection (7) shall, for the purpose of its collection, be deemed to be a fine and shall be recovered in accordance with section 283 of the Criminal Procedure Code [Act 593]. PART V AUDIT AND ANNUAL REPORT Submission of accounts, audit and annual report 23. The Statutory Bodies (Accounts and Annual Reports) Act 1980 [Act 240] shall apply in respect of the accounts, audit and annual reports of the Board.

25 Malaysian Cocoa Board (Incorporation) 25 PART VA ENFORCEMENT Authorization of officers 23A. (1) The Director General may, in writing, authorize any officer of the Board to exercise the powers of enforcement under this Act. (2) An officer authorized under subsection (1) when acting under this Act shall, on demand, declare his office and produce to the person against whom he is acting or from whom he seeks any information such authority card as the Director General may direct to be carried by such officer. Power of investigation 23B. An authorized officer shall have all the powers necessary to carry out an inspection and to investigate the commission of any offence under this Act. Search by warrant 23C. (1) If it appears to a Magistrate, upon written information on oath and after such enquiry as the Magistrate considers necessary, that there is reasonable cause to believe that an offence under this Act or any regulations made under this Act is being or has been committed on any premises, the Magistrate may issue a warrant authorizing any authorized officer named in the warrant to enter the premises at any reasonable time by day or by night, with or without assistance and if need be by force, and there to (a) search for and seize any cocoa, conveyance, machinery, contrivance, equipment, book, record, document or other article that is reasonably believed to furnish evidence of the commission of such offence; (b) take samples of any cocoa or thing found in the premises for the purposes of ascertaining, by testing or otherwise, whether the offence has been committed; and (c) make copies of or take extracts from any book, record, document or other article found in the premises.

26 26 Laws of Malaysia ACT 343 (2) An authorized officer entering any premises under this section may take with him such other persons and equipment as may appear to him to be necessary. (3) An authorized officer may, in the exercise of his powers under this section, if it is necessary to do so (a) break open any outer or inner door of the premises and enter into the premises; (b) forcibly enter the premises and every part of the premises; (c) remove by force any obstruction to entry, search, seizure and removal as he is empowered to effect; and (d) detain every person found in the premises until the place has been searched. (4) If, by reason of its nature, size or amount, it is not practicable to remove any cocoa, conveyance, machinery, contrivance, equipment, book, record, document or other article seized under this section, the seizing officer shall, by any means, seal such cocoa, conveyance, machinery, contrivance, equipment, book, record, document or other article in the premises or container in which it is found. (5) A person who, without lawful authority, breaks, tampers with or damages the seal referred to in subsection (4) or removes the cocoa, conveyance, machinery, contrivance, equipment, book, record, document or other article under seal or attempts to do so commits an offence and shall on conviction be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both. Power to stop and search conveyances 23D. (1) If an authorized officer has reasonable cause to suspect that any conveyance is carrying any cocoa, machinery, contrivance, equipment, book, record, document or any other article in respect of which an offence under this Act or any regulations made under this Act is being or has been committed, he may stop and examine the conveyance and may, if on examination he has reasonable cause to believe that such conveyance is or has been used for the commission of such offence, seize such conveyance and any cocoa, machinery, contrivance, equipment, book, record, document or other article found in the conveyance that is reasonably believed to furnish evidence of the commission of such offence.

27 Malaysian Cocoa Board (Incorporation) 27 (2) The person in control or in charge of the conveyance shall, if required to do so by the authorized officer (a) stop the conveyance and allow the authorized officer to examine it; and (b) open all parts of the conveyance for examination and take all measures necessary to enable or facilitate the carrying out of such examination as the authorized officer considers necessary. (3) A person who contravenes subsection (2) commits an offence and shall on conviction be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both. List of things seized 23E. (1) Except as provided in subsection (2), if any cocoa, conveyance, machinery, contrivance, equipment, book, record, document or other article is seized under section 23C or section 23D, the seizing officer shall prepare a list of the things seized and immediately deliver a copy of the list signed by him to (a) if premises have been searched under section 23C, the occupier of the premises that have been searched, or to his agent or servant, at those premises; and (b) if a conveyance is seized under section 23D, the person in control or in charge of the conveyance. (2) If the premises are unoccupied, the seizing officer shall whenever possible post a list of the things seized conspicuously on the premises. Power to enter premises 23F. Notwithstanding section 23C, an authorized officer may at any time enter any premises for the purpose of (a) inspecting any cocoa, conveyance, machinery, contrivance, equipment, book, record, document or other article as he considers necessary;

28 28 Laws of Malaysia ACT 343 (b) verifying the accuracy of records or statements or any information given to an authorized officer or to the Board; or (c) collecting samples of any cocoa. Temporary return of conveyance, etc. 23G. (1) If any conveyance, machinery, contrivance or equipment is seized under this Act, the court may temporarily return the conveyance, machinery, contrivance or equipment to the owner of the conveyance, machinery, contrivance or equipment or the person from whose possession, custody or control it was seized, subject to such conditions as the court may impose and, subject in any case to sufficient security being furnished to the satisfaction of the court that the conveyance, machinery, contrivance or equipment shall be surrendered to the court on demand and that such conditions, if any, shall be complied with. (2) If any seized conveyance, machinery, contrivance or equipment is temporarily returned under subsection (1), a person who (a) fails, on demand, to surrender the conveyance, machinery, contrivance or equipment to the court; or (b) contravenes any of the conditions imposed under subsection (1), commits an offence and shall on conviction be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both. Sale and disposal of seized cocoa 23H. (1) The Director General may at any time direct that any cocoa seized under this Act be sold and the proceeds of the sale be held while waiting for the result of any prosecution under this Act if (a) the cocoa is of a perishable nature or easily deteriorates in quality; (b) the custody of the cocoa involves unreasonable expense and inconvenience;

29 Malaysian Cocoa Board (Incorporation) 29 (c) there is a lack or absence of adequate or proper facilities for the storage of the cocoa; or (d) the cocoa is believed to cause an obstruction or to be a hazard to the public. (2) Notwithstanding subsection (1), if an analyst certifies, or if the results of tests as certified by an analyst proves, that the cocoa tested by him is contaminated, the seizing officer may keep it in custody or, if no prosecution is instituted in respect of the cocoa, cause it to be disposed of in the manner determined by the Director General. Seized cocoa, etc., liable to forfeiture 23I. Any cocoa or the proceeds of sale of any cocoa, or any conveyance, machinery, contrivance, equipment, book, record, document or other article seized in exercise of any power conferred under this Act shall be liable to forfeiture. Property in forfeited cocoa, etc. 23J. Any cocoa or the proceeds of sale of any cocoa, or any conveyance, machinery, contrivance, equipment, book, record, document or other article forfeited or taken and deemed to be forfeited under this Part shall be the property of the Board. Forfeiture or release of seized cocoa, etc. 23K. (1) If prosecution is instituted with regard to any cocoa or the proceeds of sale of any cocoa, or any conveyance, machinery, contrivance, equipment, book, record, document or other article seized under this Act, the court before which the prosecution with regard to the matter has been held may order the forfeiture or release of the thing concerned. (2) The court shall order the forfeiture of the cocoa or the proceeds of sale of the cocoa, or the conveyance, machinery, contrivance, equipment, book, record, document or other article if it is proved to the satisfaction of the court that an offence under this Act has been committed and that the cocoa, conveyance, machinery, contrivance, equipment, book, record, document or other article was the subject matter of or was used in the commission of the offence, notwithstanding that no person may have been convicted of such offence.

30 30 Laws of Malaysia ACT 343 (3) If no prosecution is to be instituted with regard to any cocoa or the proceeds of sale of any cocoa, or any conveyance, machinery, contrivance, equipment, book, record, document or other article seized under this Act, the authorized officer in whose custody it is held shall notify the person from whom the cocoa, conveyance, machinery, contrivance, equipment, book, record, document or other article was seized of that fact and of the provisions of section 23L. (4) A notice under subsection (3) shall be in writing and shall be sent to the last-known address of the person concerned. (5) If no claim is made under section 23L within thirty days from the date of service of the notice referred to in subsection (3), the cocoa or the proceeds of sale of the cocoa, or the conveyance, machinery, contrivance, equipment, book, record, document or other article seized shall be taken and deemed to be forfeited at the expiration of that period. Claim for seized cocoa, etc. 23L. (1) A person who asserts that he is the owner of the cocoa or the proceeds of sale of the cocoa, or of the conveyance, machinery, contrivance, equipment, book, record, document or other article referred to in subsection 23K(3) and that it is not liable to forfeiture may, personally or by his agent authorized in writing, give written notice to the authorized officer in whose custody it is held that he claims the cocoa or the proceeds of sale of the cocoa, or the conveyance, machinery, contrivance, equipment, book, record, document or other article. (2) On receipt of the notice referred to in subsection (1), the authorized officer shall refer the matter to the Director General who may direct that the cocoa or the proceeds of sale of the cocoa, or the conveyance, machinery, contrivance, equipment, book, record, document or other article be released or may direct the authorized officer, by information in writing, to refer the matter to a Magistrate. (3) The Magistrate to whom a matter is referred under subsection (2) shall issue a summons requiring the Board and the person asserting that he is the owner of the cocoa or the proceeds of sale of the cocoa, or of the conveyance, machinery, contrivance, equipment, book, record, document or other article and the person from whom the cocoa, conveyance, machinery, contrivance,

31 Malaysian Cocoa Board (Incorporation) 31 equipment, book, record, document or other article was seized to appear before the Magistrate and on their appearance or default to appear, due service of the summons having been proved, the Magistrate shall proceed to the examination of the matter. (4) If it is proved that an offence under this Act has been committed and that the cocoa, conveyance, machinery, contrivance, equipment, book, record, document or other article was the subject matter of or was used in the commission of such offence, the Magistrate shall order the cocoa or the proceeds of sale of the cocoa, or the conveyance, machinery, contrivance, equipment, book, record, document or other article to be forfeited, and shall in the absence of such proof order its release. (5) Any cocoa or the proceeds of sale of any cocoa, or any conveyance, machinery, contrivance, equipment, book, record, document or other article forfeited or deemed to be forfeited shall be delivered to the authorized officer and shall be disposed of in accordance with the directions of the Magistrate. (6) The Board shall not be liable to any person for any deterioration, no matter how arising, in the quality of any cocoa seized under this Act. Release of seized cocoa, etc. 23M. Notwithstanding section 23L, the Director General or any officer authorized by the Director General may, if he thinks fit, at any time direct that any cocoa or the proceeds of sale of any cocoa, or any conveyance, machinery, contrivance, equipment, book, record, document or other article seized under this Part be released to the person from whose possession, custody or control the cocoa, conveyance, machinery, contrivance, equipment, book, record, document or other article was seized. Cost of holding seized cocoa, etc. 23N. If any cocoa or the proceeds of sale of any cocoa, or any conveyance, machinery, contrivance, equipment, book, record, document or other article seized under this Act is held in the custody of the Board or the Government pending completion of any proceedings in respect of an offence under this Act, the cost

32 32 Laws of Malaysia ACT 343 of holding it in custody shall, in the event of any person being found guilty of an offence, be a debt due to the Board or the Government, as the case may be, by such person and shall be recoverable accordingly. No costs or damages arising from seizure to be recoverable 23O. No person shall, in any proceedings before any court in respect of the seizure of any cocoa, conveyance, machinery, contrivance, equipment, book, record, document or other article seized in the exercise or the purported exercise of any power conferred under this Act, be entitled to the costs of such proceedings or to any damages or other relief unless such seizure was made without reasonable cause. Additional powers 23P. (1) An authorized officer shall, for the purposes of the execution of this Act, have power to do all or any of the following acts (a) to require the production of records, accounts, computerized data and documents and to inspect, examine and copy any of them; (b) to require the production of any identification document from any person in relation to any case or offence under this Act; (c) to make such enquiry as may be necessary to ascertain whether this Act has been complied with. (2) A person who fails to comply with a request made under subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both. Offence to assault or obstruct authorized officer 23Q. A person who (a) assaults, obstructs, impedes or interferes with any authorized officer in the performance of his functions under this Act;

33 Malaysian Cocoa Board (Incorporation) 33 (b) rescues or endeavours to rescue any cocoa or the proceeds of sale of any cocoa, or any conveyance, machinery, contrivance, equipment, book, record, document or other article seized under this Act; or (c) before or after any seizure causes the disappearance of or damages or destroys any cocoa, conveyance, machinery, contrivance, equipment, book, record, document or other article in order to prevent the seizure or securing of the cocoa, conveyance, machinery, contrivance, equipment, book, record, document or other article, commits an offence and shall on conviction be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both. PART VB GENERAL Appointment of analysts 23R. (1) For the purposes of this Act, the Minister may appoint analysts to examine and test any cocoa and to certify its condition, type, method of processing, quality, standard and grade. (2) In any prosecution for an offence under this Act, a certificate of analysis signed by an analyst shall be sufficient evidence of the facts stated in the certificate. Proportional examination or testing of seized cocoa 23S. (1) If it is necessary to examine or test any cocoa seized under this Act, it shall be sufficient to examine or test only a sample not exceeding ten per centum in volume or weight of the cocoa or of each different type or description of the cocoa or, if the cocoa is packed in different packages, of the contents of each package. (2) The court shall presume that the rest of the type, description or package of the cocoa conforms in condition, type, method of processing, quality, standard, grade or otherwise to the sample of the cocoa examined or tested.

34 34 Laws of Malaysia ACT 343 Obligation of secrecy 23T. (1) Except for the purposes of this Act or for the purposes of any civil or criminal proceedings under any written law or if otherwise authorized by the Board (a) no member of the Board or any of its committees or any officer or servant or agent of the Board or any person attending any meeting of the Board or any of its committees, whether during his tenure of office or during his employment or after that, shall disclose any information obtained by him in the course of his duties; and (b) no person who, by any means, has access to any record, book, register, correspondence, information, document or other material obtained under this Act or relating to the affairs of the Board shall disclose such record, book, register, correspondence, information, document or other material. (2) A person who contravenes subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both. False information 23U. A person who makes, orally or in writing, signs or furnishes any declaration, return, certificate or other document or information required under this Act that is untrue, inaccurate or misleading in any particular commits an offence and shall on conviction be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both. Offence by body corporate 23V. (1) If a body corporate commits an offence under this Act, any person who at the time of the commission of the offence was a director, manager, secretary or other similar officer of the body corporate or was purporting to act in any such capacity or was in any manner or to any extent responsible for the management of any of the affairs of the body corporate or was assisting in such management (a) may be charged severally or jointly in the same proceedings with the body corporate; and